Citation Nr: 0948643
Decision Date: 12/28/09 Archive Date: 01/13/10
DOCKET NO. 09-15 421 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Whether new and material evidence has been received to reopen
the previously denied claim of service connection for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The Veteran served on active duty from January 1971 to
November 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued in January
2008 by the Department of Veterans Affairs (VA) Regional
Office (RO) located in Cleveland, Ohio.
The Veteran testified at a videoconference hearing before the
undersigned Acting Veterans Law Judge in November 2009, and a
transcript of this hearing is of record.
FINDINGS OF FACT
1. The Veteran's previously denied claim of service
connection for bilateral hearing loss was denied in a
September 2005 rating decision; the RO provided notice of
this action in October 2005, but a timely appeal was not
perfected.
2. The evidence added to the record since the September 2005
RO decision does not relate to an unestablished fact
necessary to substantiate the claim of service connection for
bilateral hearing loss or otherwise raise a reasonable
possibility of substantiating such claim.
CONCLUSION OF LAW
Since the final September 2005 rating decision, new and
material evidence has not been presented to reopen the claim
of service connection for bilateral hearing loss. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) became law. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107 (West 2002). The regulations implementing VCAA
have been published. See 38 C.F.R §§ 3.102, 3.156(a), 3.159,
3.326(a) (2009). VCAA and the implementing regulations apply
in the instant case.
Under VCAA, VA first has a duty to provide an appropriate
claim form, instructions for completing it, and notice of
information necessary to complete the claim if it is
incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2).
Second, VA has a duty to notify a claimant of the information
and evidence needed to substantiate and complete a claim,
notice of what part of that evidence is to be provided by the
claimant, and notice of what part VA will attempt to obtain
for the claimant. 38 U.S.C.A. § 5103(a); Charles v.
Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
Third, VA has a duty to assist a claimant in obtaining
evidence needed to substantiate a claim. This assistance
includes obtaining all relevant evidence adequately
identified in the record, and in some cases, affording VA
examinations. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Letters dated in August and October 2007 satisfied these
criteria. The claim was readjudicated in a February 2009
Statement of the Case (SOC). As part of the above-referenced
August 2007 correspondence, the Veteran was notified how
disability ratings and effective dates were assigned.
Hence, the content of the notice provided to the Veteran
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. The
Veteran has been provided with every opportunity to submit
evidence and argument in support of his claim and to respond
to the VA notice.
The Board is also aware of the considerations of the United
States Court of Appeals for Veterans Claims (Court) in Kent
v. Nicholson, 20 Vet. App. 1 (2006), regarding the need for
notification of the evidence and information that is
necessary to reopen a claim and what is necessary to
establish the underlying claim for the benefit sought.
However, there is no indicated defect in this case. In the
October 2007 letter and as part of the February 2009 SOC, the
Veteran was advised of both the type of evidence needed to
reopen his claim of service connection for bilateral hearing
loss and what was necessary to establish entitlement to the
claimed benefit.
In this case, the RO looked at the bases for the denial in
the prior September 2005 prior decision, and, in so doing,
informed the Veteran of the bases for the prior denial of his
claim. Also, the Veteran has essentially known since the
September 2005 rating decision that the crux of his case
depended on his showing that he in fact had bilateral hearing
loss which was either caused or aggravated by his military
service. Accordingly, further development is not indicated.
Further, the purpose behind the notice requirement has been
satisfied because the Veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claim. There is no evidence of any failure on the part
of VA to further comply with VCAA that reasonably affects the
outcome of this case.
While perfection is an aspiration, the failure to achieve it
in the administrative process, as elsewhere in life, does
not, absent injury, require a repeat performance. Miles v.
M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).
For these reasons, it is not prejudicial to the Veteran for
the Board to proceed to finally decide this appealed matter.
The Board acknowledges that the notice required by 38
U.S.C.A. § 5103(a) must be provided to a claimant before the
initial unfavorable agency of original jurisdiction decision
on a claim for VA benefits. Such notice was provided the
Veteran in March 2005.
Here, the above-cited notice correspondence fully complied
with the requirements of 38 U.S.C.A. § 5103(a). The Veteran
was provided with every opportunity to submit evidence and
argument in support of his claim and to respond to the VA
notice. The claim was thereafter readjudicated. Therefore,
the actions taken by VA have cured any defect in the timing
of notice.
Factual Background
The service treatment records include a May 1970 examination
report completed in the course of the Veteran's pre-induction
examination. This report revealed right ear pure tone
thresholds, in decibels, as 5, 5, 0, and 5 decibels (dB) at
the 500, 1000, 2000, and 4000 hertz (Hz) frequencies. For
the left ear, at the same frequencies, the puretone
thresholds were 10, 5, 0, and 0. Findings for the 3000
frequency were not reported. In the course of the Veteran's
October 1972 service separation examination audiometer
results showed right ear pure tone thresholds, in decibels,
of 5, 10, 0, and 5 dB at the 500, 1000, 2000, and 4000 Hz
frequencies. For the left ear, at the same frequencies, the
puretone thresholds were 5, 0, 0, and 5 dB. Findings for the
3000 Hz frequency were again, as in May 1970, not reported.
The Veteran's DD Form 214 shows that his military service
occupation was "FA OPER & INTEL ASST."
The report of a VA examination conducted in December 1973
indicated that no hearing loss was noted.
Review of a January 1999 VA outpatient treatment record shows
that comprehensive hearing testing revealed that the Veteran
had bilateral sensorineural hearing loss. He was fitted for
bilateral hearing aids at that time. A January 2005 VA
outpatient medical record shows that the Veteran was fitted
for new bilateral hearing aids.
The report of a September 2005 VA audio examination shows
that the Veteran's claims file was reviewed, including his
service treatment records. Audiometric examination conducted
at that time shows the presence of bilateral hearing loss, as
defined by 38 C.F.R. § 3.385 (2009). The Veteran provided a
history of in-service acoustic trauma, attributable to being
exposed to 8 inch howitzers. He denied being exposed to
noise following his military separation. He claimed that he
first began to notice hearing problems in 1975, and that
since 1995 his hearing acuity had progressively worsened.
The examiner supplied a diagnosis of bilateral sensorineural
hearing loss. The examiner opined that it was less likely
than not that the Veteran's hearing loss was the result of
exposure to noise while in the military. He based his
opinion on the findings of the separation examination report
which showed normal bilateral hearing, and the report of the
October 1972 VA examination which showed no hearing loss.
The examiner added that the air conduction thresholds
pertaining to the instant examination findings were not
consistent with a noise-induced hearing loss pattern.
The RO denied service connection for bilateral hearing loss
in September 2005. The RO determined that the claimed
disorder neither incurred in nor was caused by the Veteran's
military service. The Veteran was afforded notification of
this decision in October 2005. That decision was not
appealed and is final. 38 U.S.C.A. § 7104. The claim may
not be reopened unless new and material evidence is received.
38 U.S.C.A. § 5108.
The Veteran sought to reopen his claim for service connection
in August 2007. See VA Form 21-4138.
A November 2009 letter supplied by the Veteran's wife shows
that she claimed to have been married to the Veteran for 36
years [approximately since 1973]. She added that within the
first couple of years of marriage the Veteran may have been
showing signs of early hearing loss.
In the course of his November 2009 hearing conducted by the
undersigned, the Veteran testified that he suffered from in-
service noise exposure. See page three of hearing transcript
(transcript). He added that he first noted hearing loss
about two years after his service separation but did not file
a claim for benefits at that time. See page four of
transcript. The Veteran also denied any post-service noise
exposure. See page seven of transcript.
Laws and Regulations
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
In sum, in order to establish direct service connection for a
disorder, there must be (1) medical evidence of the current
disability; (2) medical, or in certain circumstances, lay
evidence of the in-service incurrence of a disease or injury;
and (3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability.
Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing
Hickson v. West, 12 Vet. App. 247, 253 (1999)).
Certain chronic disabilities, such as organic diseases of the
nervous system (sensorineural hearing loss), are presumed to
have been incurred in service if manifest to a compensable
degree within one year of discharge from service. 38
U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
New evidence means existing evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. 38 C.F.R. § 3.156(a).
In determining whether evidence is new and material, the
credibility of the evidence is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The Court has in the past held that lay testimony is
competent regarding features or symptoms of injury or disease
when the features or symptoms are within the personal
knowledge and observations of the witness. Layno v. Brown, 6
Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson,
451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Court has
also held that lay persons, such as the Veteran, are not
qualified to offer an opinion that requires medical
knowledge, such as a diagnosis or an opinion as to the cause
of a disability that may be related to service. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007)
(holding that a layperson may provide competent evidence to
establish a diagnosis where the lay person is "competent to
identify the medical condition"). Here, the Veteran, and
his wife, are capable of observing symptoms of hearing loss,
but neither are competent (i.e., professionally qualified) to
offer an opinion as to the cause of this condition.
The Board has reviewed all the evidence in the Veteran's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by an appellant or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-
81 (Fed. Cir. 2000).
Analysis
Service connection for bilateral hearing loss was denied by a
rating decision in September 2005 on the basis that no
evidence was presented to show either bilateral hearing loss
in service or the presence of current hearing loss which was
determined to have been either incurred or aggravated by the
Veteran's military service. That decision was not perfected
on appeal and is final. 38 U.S.C.A. § 7105. The claim may
not be reopened unless new and material evidence is received.
38 U.S.C.A. § 5108.
For the evidence to be new and material in this case, it must
essentially show that that the Veteran had hearing loss which
was determined to have been either incurred or aggravated by
his military service.
The evidence received since the September 2005 RO decision,
on review by the Board, does not relate to a previously
unestablished fact that would tend to substantiate the
Veteran's claim.
Significantly, the material associated with the claims folder
since September 2005, namely, a lay statement dated in
November 2009 from the Veteran's wife (which claimed that the
Veteran began to notice hearing difficulties within the
"first couple years" of their marriage (approx. 1973-1975),
and testimony rendered by the Veteran at his November 2009
hearing (where he alleged that he was exposed to acoustic
trauma while in the military and first noted hearing loss
about two years following his service discharge), includes no
medical evidence whatsoever to support any current assertion
of in-service incurrence or aggravation of the claimed
bilateral hearing loss.
Given the length of time between the Veteran's active duty
separation (1972) and the first post-service diagnosis of the
claimed bilateral hearing loss disorder (1999), the
preponderance of the competent evidence of record is against
finding a continuity of objectively verifiable
symptomatology. 38 C.F.R. § 3.303(d); Maxson v. West, 12
Vet. App. 453 (1999) (service incurrence may be rebutted by
the absence of medical treatment for the claimed condition
for many years after service).
While sensorineural hearing loss has also been diagnosed,
this was first found in 1999, well after the Veteran's 1972
service discharge. Thus, service connection can not here be
awarded on either a presumptive or direct basis. 38 C.F.R.
§§ 3.307, 3.309.
Concerning the above-cited September 2005 VA audio
examination report, and its included findings, the Board
finds that that the report provided sufficient detail for the
Board to make a decision in this case. See Barr v.
Nicholson, 21 Vet. App. 303, 311 (affirming that a medical
opinion is adequate if it provides sufficient detail so that
the Board can perform a fully informed evaluation of the
claim). Here, in addition to supplying an opinion as to the
etiology of the Veteran's hearing loss disorder, the examiner
supported his proffered opinion with supporting clinical
evidence of record.
Regarding the Veteran's claim for entitlement to service
connection for bilateral hearing loss, he is a layperson, and
his statements (and the statements from his wife) alone
cannot constitute medical evidence, as opinions regarding
diagnosis or nexus require medical expertise. Espiritu.
His assertions, by themselves, cannot constitute competent
evidence that tends to substantiate his claim of service
connection on the basis of incurrence or aggravation.
Without assessing the credibility of his arguments, the Board
finds the Veteran's contentions in their scope to be of no
probative weight for the purpose of reopening the claim.
This same finding, as to the probative weight of submitted
evidence, similarly applies to the lay statement submitted by
the Veteran's wife in November 2009.
Accordingly, new and material evidence has not been received
to reopen the Veteran's claim of service connection for
bilateral hearing loss.
ORDER
As new and material evidence has not been submitted to reopen
the claim of service connection for bilateral hearing loss,
the appeal to this extent is denied.
____________________________________________
J. BARONE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs